Englehart v. Richter

• Decision Date: 28 February 1903
• Citation: 33 So. 939,136 Ala. 562
• Parties: ENGLEHART ET UX. v. RICHTER.
• Court: Alabama Supreme Court

33 So. 939

136 Ala. 562

ENGLEHART ET UX. v. RICHTER.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Cullman County; Osceola Kyle, Judge.

Action by William Richter, executor of Anna King, deceased, against William Englehart and Mary Englehart. From a judgment for plaintiff, defendants appeal. Affirmed.

This was an action by appellee against appellants on a promissory note for $250, payable to Anna King. In the summons and the caption of the complaint the plaintiff is described as "William Richter, executor of the last will and testament of Anna King, deceased." In the body of the complaint is this clause: "The plaintiff, who sues as the executor of the last will and testament of Anna King deceased, claims," etc. The defendant William Englehart pleaded payment and the general issue. His codefendant, Mary Englehart, pleaded the general issue, want of consideration and that she was at the time of the execution of the note the wife of William Englehart, and that the note was given for her husband's debt. Issue being joined on these pleas the defendants requested the court to hear the evidence on the plea of coverture before the trial of the other pleas which request was refused, and defendants excepted.

The plaintiff offered in evidence a note payable to Anna King signed by William Englehart and Mary Englehart, for $250, dated October 18, 1900, due January 1, 1902. It was admitted that the payee, Anna King, was dead. One Hattie Baim was then examined as a witness for defendants, and testified that just before Christmas in the year 1900 Anna King was in defendant's store, and had a conversation with William Englehart; that during the conversation Englehart paid Mrs. King $250, and in the conversation something was said as to the payment of the $250 for Wm. Englehart's debt or note, and that Mrs. King told Wm. Englehart that she would return the note when she found it; that witness saw Mrs. King then sign a receipt as follows:

" $250.00. Cullman, Ala., Dec. 17, 1900. Received of Wm. Englehart on note in full two hundred and fifty dollars. Amount of note $250.00 due Jan 1, 1902. Note must be returned when found. Twenty dollars. Anna King.

" Paid Dec. 17, 1900.

" Date of note, Oct. 18, 1900."

The witness also testified that she remembered all the receipt, except the words "twenty dollars."

Mary Englehart then testified that she was the wife of defendant William Englehart, and was at the store of Wm. Englehart in December, 1900, when Anna King had a conversation with William Englehart in the presence of Hattie Baim. She was then asked the following questions, to which separate objections were made by plaintiff, which objections were sustained by the court, and exceptions taken by defendants, namely: (1) For whose debt was this note given? (2) State whether or not you ever had any interest in the debt for which the note was made, or were you in any pecuniary manner interested in said debt, or the fruits for which it was made? (3) State what, if anything, was said in said conversation about the return of a note? (4) Whether or not witness saw Wm. Englehart pay Anna King, at the time testified to by Hattie Baim, any money? (5) Whether or not witness saw the receipt above mentioned executed?

William Englehart was then asked, "Did Anna King, in your store, in December, 1900, have the conversation as testified to by the witness Hattie Baim?" Plaintiff's objection to this question was sustained, and defendants excepted.

Wm. Richter, as a witness for plaintiff, then testified to his experience in deciphering and comparing handwritings, and that he could tell by examining handwritings whether they were old or new, or made in different inks, etc. He was then asked to examine the receipt, and state whether or not it had been changed in any way since it was executed. To this question defendants objected for the reason "that witness' being an expert had not been sufficiently proved." This objection was overuled, and defendants excepted. The witness replied that the receipt had been altered, and was originally for only $20, and that the words therein which the reporter has italicized were added or interlined at some time since the receipt was made, and were in different ink.

One Bruner, as a witness for plaintiff, then testified that on February 18, 1900, he went to Wm. Englehart for two notes--the one sued on, and another, of like amount, which Englehart owed Anna King--and that Wm. Englehart told him that the notes were all right, and he owed them, and gave him the notes to take to Anna King; that, one or two days before Anna King's death, defendant told witness he had paid the note.

This being all the evidence, the court refused the general affirmative charge...